SHANMUGALINGAM & ANOTHER v. VAITHESWARA KURUKKAL AND OTHERS

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SHANMUGALINGAM & ANOTHER
v.VAITHESWARA KURUKKAL AND OTHERS
COURT OF APPEAL.
G. P. S. DE SILVA. J. (President, C/A) AND DHEERARATNE, J.
A. 622/76(F).
C. JAFFNA T.R. 106.
SEPTEMBER 10. 11 AND 12. 1986.
Hindu Religious Trust- Trustees and hereditary priest-Appointment by deed as trusteeby hereditary priest and nomination of person by same deed for appointingtrustees-Revocation and renunciation by deed-Duty of judge to examinecase-Section 48 of Courts Ordinance No. 9 of 1917-Law before Trusts Ordinancecame into operation
Before the Trusts Ordinance of 1917- came into operation in the absence of aninstrument regulating the devolution of trusteeship or any special customary rule, thetrusteeship devolved on the heirs of the founder of the trust. Subject to anyarrangement made by the founder, the right of management of the foundation vests inthe founder himself and his heirs, but the founder himself is entitled to make expressprovisions for future management.
Hindu temples in Ceylon are under the control and management of persons in whom thefabric is vested:
by right of private ownership,
by grant or assignment by the owner of the land on which the temple is built.
by appointment by the congregation, and
by deed of trust.
But these means by which managers or trustees are appointed are not exhaustive.
By the law then in existence the trustee is not precluded from renouncing his rights oftrusteeship, agreeing to appoint another person as a trustee and relegating himself tothe position of a priest reserving the right of performing poojahs subject to the authorityand powers of the new trustee. After such renunciation he has no authority to appointtrustees.
After the Trusts Ordinance No. 9 of 1917 came into operation the trustee cannotrenounce his trusteeship in view of s. 48 of that Ordinance. In terms of s. 72 of theOrdinance the office of a trustee is vacated by his death or his discharge from office.
Cases referred to:
Thambakarv. Govindran 1887 – N.L.R. Bombay XII, page 247.
Supramaniam et al v. Elampa Kurukkal etal-(1922) 23 NLR 417, 424.
Narayanan Chetty v. James Finlay and Co. – (1927) 29 NLR 65. 70.
Ramanathan v. Kurukkal -(1911) 15 NLR 216.
Kumaraswamy Kurukkal v. Karthigesa Kurukkal – (1923) 26 NLR 33, 37, 38.APPEAL from judgment of the District Court of Jaffna.
H. L. De Silva. P. C. with K. Kanag Isvaran for defendant-appellants.
Dr. H. W. Jayewardene, Q.C. with S. Mahenthiran and Miss T. Keenawinna forplaintiff-respondent.
Cur. adv. vult
■ November 14, 1986.
DHEERARATNE, J.
Plaintiffs filed this action on 03.05.1970 seeking that they bedeclared lawful trustees and hereditary priests of the temple called SriSithivinayagar Kovil and its temporalities, that they be quieted inpossession as such, and for ejectment of the defendants. Theplaintiffs claimed that this temple was founded by NarayanapillaiArumugam and that Kumaraswamy Kurukkal was its hereditary priest;that Narayanapillai Arumugam officiated a trustee of the temple untilby deed No. 1388 of 20.09.1914 (P2), he appointed KumaraswamyKurukkal as trustee who officiated as such; that by P2 NarayanapillaiArumugam, nominated Kumaraswamy Kurukkal for the purpose ofappointing trustees in the event of a vacancy occurring; that by deedNo. 2287 of 07. 05. 1916 (PI) Kumaraswamy Kurukkal along withNarayanapillai Arumugam appointed Arumugam Sarawanamuttu tosucceed Kumaraswamy Kurukkal as trustee and also provided that on
the death of Arumugam Saravanamuttu the trusteeship shoulddevolve on the male descendants of Saravanamuttu and on the failureof such male descendants the trusteeship should devolve onSaravanamuttu's female descendants; that ArumugamSaravanamuttu and his descendants who officiated as trustees diedwithout leaving any descendants and therefore in accordance with theterms of deed P2, by deed No. 23850 of 12.12.1969 (P3),Kumaraswamy Kurukkal appointed the plaintiffs as trustees, who byvirtue of section 77 of the Trusts Ordinance No. 9 of 1917 (Chap. 87)are entitled to the said temple and to its temporalities.
On 12.10.1970, the defendants filed answer averring among othermatters, that P2 of 1914 was executed by Narayanapillai Arumugamat a time when he was old and infirm and that he had been deceivedby Kumaraswamy Kurukkal who was functioning as a priest to signingthat deed; that when the execution of the deed P2 became known tothe descendants of the founder of the temple namely SiththamparamRamar, Kumaraswamy Kurukkal was made to join in the execution ofP1 of 1916, whereby P2 was revoked and Narayanapillai Arumugam'sson Arumugam Saravanamuttu was appointed the sole trustee; andthat Kumaraswamy Kurukkal was permitted to officiate as the priest ofthe temple during his life time under the supervision of ArumugamSaravanamuttu. The defendants denied that Kumaraswamy Kurukka.had any hereditary right as a priest or any status as a trustee and P3conveyed any rights to the plaintiffs. The defendants further averredthat the temple was built by Siththamparam Ramar in the year 1775and its trusteeship devolved on his descendants Raman Sarawani,thereafter to Sarawani Narayanapillai and then to NarayanapillaiArumugam. The defendants also averred that after NarayanapillaiArumugam, his son Arumugam Sarawanamuttu succeeded to thetrusteeship and, after his death, his son Vinayagampillai succeeded astrustee, who later died unmarried and issueless in the year 1961,whereupon his cousin (son of Arumugam Saravanamuttu's sisterSittangam) Kanapathipillai Sinniah became the sole hereditary trustee;that he by deed No. 6160 of 01.09.1969 (D17) appointed his sonthe 1 st defendant as the sole trustee of the temple; and that the 2nddefendant is assisting the 1st defendant to perform the duties of atrustee. The defendants by this answer only asked for a dismissal ofthe plaintiffs' action.
On 12.03.1971, the plaintiffs filed an amended plaint. In thisamended plaint they took somewhat a different position and averredthat P1 of 1916 was invalid in law because it is contrary to the termsof deed P2, contrary to the provisions of the Trusts Ordinance relatingto the appointment of trustees, and also because NarayanapillaiArumugam had already ceased to be a trustee at the time of itsexecution. Further, the plaintiffs averred that P1 of 1916 was notacted upon; that the P2 of 1914 could not have been revoked; thatKumaraswamy Kurukkal appointed Arumugam Saravanamuttu toassist him in the management of the temple; that on the death ofSaravanamuttu, Kurukkal appointed one Ramupillai Rasa to assist himand on Rasa's death he appointed one Ramupillai Kumaravelu to assisthim; and that on Kumaravelu's death, Kurukkal appointed the plaintiffsas trustees by P3 of 1969.
On 13.06.1971, the defendants filed amended answer specificallydenying that there was a failure of the descendants of ArumugamSarvanamuttu to succeed as trustees and on the devolution set out inthe amended answer, they prayed that the 1 st defendant be declaredentitled to as hereditary trustee.
The learned District Judge gave judgment for t ie plaintiffs and themain contention of the defendant-appellants at tie hearing of thisappeal is that there has been no proper examination of the case of theplaintiffs. The main reason which impelled the learned District Judgeto hold with the plaintiffs, appears to be the view he took that by P1 of1916, Kumaraswamy Kurukkal could not have lawfully renounced hisrights as a trustee in violation of section 48 of the Trusts OrdinanceNo. 9 of 1917, and as P1 is of no force or avail in law, in terms of P 2of 1914 Kumaraswamy Kurukkal had the power to appoint theplaintiffs as trustees by P3 of 1968. The reasoning appears to us tobe fallacious, for, as the learned trial judge reasoned out, if P1 isinvalid because it is contrary to the provisions of the Trusts OrdinanceNo. 9 of 1917, by the same process of reasoning, P2 too should beinvalid, because Narayanapillai Arumugam could not have renouncedhis trusteeship either. Furthermore, the learned District Judge has ‘overlooked the fact that both P 2 of 1914 and P1 of 1916 had beenexecuted prior to the Trusts Ordinance No. 9 of 1917 came intooperation, the date of its operation being 16.04.1918.
In P2, Narayanapillai Arumugam recites title to the temple on thebasis that it was in his undisturbed possession for over 50 years andby virtue of decree entered in the district court of Jaffna (P8/ D3 of1912), Narayanapillai Arumugam further states in P2, that since he isunable to manage and administer the temple because he is old andinfirm, he is appointing Kumaraswamy Kurukkal as trustee oradministrator. In P2, Naryanapillai Arumugam further stated:
"I do hereby declare that the said Kumaraswamy Kurukkal shalland will have power during his life time to appoint at his discretionone other trustee or administrator to function severally or jointly withhim on all matters aforesaid.
In the event of the said Kumaraswamy Kurukkal not havingappointed during his life time a person to be the trustee oradministrator after him, the right of being a trustee or administratorshall and would be vested in the male descendants of the saidKumaraswamy Kurukkal and their male descendants and to theirmale heirs. In the event of the said Kumaraswamy Kurukkal nothaving any male descendants or of not having appointed a trustee oradministrator by writing, the aforesaid right would belong to mymale descendants and after me, and to their male heirs
I further do hereby declare that in the event of the moveable orimmoveable properties of said temple being encumbered oralienated, I, and after me my son Arumugam Saravanamuttu willdefend and warrant title thereto."
By P1 of 1916, which like P2 purports to be a deed of appointmentof a trustee, Kumaraswamy Kurukkal and Naryanapillai Arumugamappointed Arumugam Saravanamuttu as a trustee. The materialportions of P1 read:
"And whereas under the said urumai, I (Narayanapillai Arumugam)was unable to maintain and manage the moveable and immoveableproperties and had appointed.. .Kumaraswamy Kurukkal.. .astrustee of the said temple under and by virtue of deed 1388 dated20th September 1914 (P2): And whereas I have certain claims andinterests in the said temple according to the said deed. Andwhereas both of us, jointly or severally are unable to maintainadminister and manage the moveable and immoveable properties ofthe said temple and also to conduct the said affairs of the saidtemple;
And whereas it has become necessary to nominate and appointanother trustee to conduct, maintain, administer and manage all theaffairs of the said temple only reserving the right of the poojahs tothe first named of us (Kurukkal)…we do hereby nominate andappoint Arumugam Saravanamuttu, son of NarayanapillaiArumugam the 2nd named of us the trustee of the said temple….
We do hereby declare the said Arumugam Saravanamuttu willand shall have full right and title during his lifetime, to appointanother trustee if so required to function jointly with him orseverally
I first named of us, the saidKumaraswamy Kurukkal do hereby
declare that I have the right of poojahs subject to the authority andpowers of Arumugam Saravanamuttu."
I would pause at this stage to consider the law of trusts applicable inthis country before the Trusts Ordinance No. 9 of 1917 came intooperation. In our view the validity of P2 and P1 could be tested only inthe light of such law. There was certainly no law before Ordinance No.9 of 1917 incorjDorating the substantive law of trusts of England as apart of our law, although some legislative provisions did exist coveringcertain procedural matters relating to the law of trusts.
Then Attorney-General, Sir Anton Bertram (later Chief Justice'moving the second reading of the Trusts Ordinance of 1917 in theLegislative Council on 15.11.1916 stated:
"In the legal history of this colony one of its most interestingchapters has been the gradual introducfon of the English Law ofTrusts into the Roman-Dutch Law of he Colony, which is itscommon law. That process has been gradual and partial, and it isnot very clear to what extent it has gore. It would not be easy todefine the law of Trusts in this Colony, because the number ofdecisions relating to it is extremely few. All we can say is that,speaking generally, we have adopted the principles of the Englishlaw. But, in order to put the law now on a proper footing, what isproposed is this, that we should take this opportunity of taking astep, which in my own view, is the natural and proper step in alldevelopments of this kind, and that is to introduce a codification ofthe general law." (Hansard of 15.11.1916, Columns 247-248).
Again, the state of the law at that time is reflected in the "statementof objects and reasons as appended to the bill", relevant portions ofwhich are cited below:
"The originating cause of this Ordinance is the unsatisfactorycondition of the law relating to religious trusts, more particularly asfar as it concerns the Hindu religious trusts. The defects in thisdepartment of the law which principally occasion inconvenienceare:
the informal nature of the constitution of many of thesetrusts ;
the uncertainty of the law as to the recognition in our courtsof the customary religious law of the communityconcerned; (see Sivapragasam v. Swaminatha Ayar, 19052 Bal 49, and subsequent cases)
the uncertainty as to the person in whom the title to thetemple or other religious foundation in question is vested;
the absence of any proper control over trustees and theiraccounts;
When however, the general law of the colony for this purpose isconsidered, it appears that there is no law, either common orstatutory, which is adequate for the purpose. The Roman-Dutchlaw, the common law of the colony, does not recognise theEnglish principle of the trust, though the expression"fidecommissum" would seem to suggest that it does. Trustsare a special invention of the English law, and were originallybased upon the dual system of law and equity. In a trust thelegal title is in one person and the beneficial interest in another.But the English law has insisted on the legal owner administeringthe property in accordance with the beneficial interest.
This department of English law has never been formally appliedto Ceylon. There are several enactments on the statute book inwhich it is assumed, as for example The Property and TrusteesOrdinance No. 7 of 1871'. There are other references to trustsboth in the Civil Procedure Code and in the Penal Code. In theseenactments (some of which are taken from India, where speciallegislation is in force) the existence of the English system isassumed; for example, the fundamental principles of English lawof trusts that the title to the trust property does not pass fromtrustee to trustee without a special conveyance or vesting orderis assumed in the Ordinance of 1871 above referred to, andphrases which belong to the English law of trusts, such as cestuique trust, are used in other Ordinances mentioned. On the otherhand, in our Ordinance No. 7 of 1840, which is based upon theEnglish Statute of Frauds, the English section requiringdeclaration of trust to be in writing was deliberately omitted. Thenumber of cases decided on the general law of trusts, reportedin our local reports, is extremely small.
It is clear, therefore, that before any legislation dealing withreligious trusts can be passed, the general law of trusts must beput upon a definite basis India already possesses an admirableCode of the Law of Trusts, and this should clearly be adopted asour model. As every statute must necessarily repose upon ageneral basis of unwritten law, provision must at the same timebe made as to the principles to be applied in cases where theCode is silent.
1 1. The application of the customary religious law of thecommunity is provided for by section 106. So far as HinduTrusts are concerned, that section will bring into force theprinciples laid down in Thambakar v. Covindran (1). Theseprinciples will also have a salutory application for the purpose ofMuhammadan religious trusts.
12. The difficulties arising from the informal constitution of many ofthe religious trusts of the Colony, both Hindu andMuhammadan, are dealt with by section 107, which provides inthe widest possible terms for recogn tmn of de facto trusts.
There is no-doubt that certain English principles of the law of trustswere judicially received in this country before the Trusts Ordinance No.9 of 1917 came into operation, but the extent of such receptionappears to us to be a matter of conjecture. Divergent views have beenexpressed as to whether the entire English law of trusts had beenreceived in this country prior to the enactment of the Ordinance of1917. In the case of Supramaniam et al v. Elampa Kurukkal et al (2)Bertram, C.J. observed:
"The English Law of Trusts was long ago received into the law ofthis country".
while Garvin, J. in Narayanan Chetti v. James Finlay and Co. (3)commented:
"The whole subject of trusts as known to the English law is foreignto our Common Law and the Ordinance No. 9 of 1 91 7 may be saidto have first introduced the law of trusts into our legal system. Itwould perhaps be correct to say that the extent of judicial reception
of the English Law of Trusts before the Ordinance No. 9 of 1917is uncertain and not very clear .to what extent it has gone."
In this state of uncertainty of the pre 1917 law, we may not bejustified in considering in terms of general principles of the English Lawof Trusts, as to whether Narayanapillai Arumugam could have lawfullyrenounced his trusteeship by executing P2 of 1914, or whetherKumaraswamy Kurukkal could have lawfully renounced his trusteeshipby executing P1 of 1916. It would then be prudent in our view tointerpret those two documents giving expression to the intentions ofparties as far as they accord with the customary rights governingHindu temporalities at that time.
It would appear that before the Trusts Ordinance of 1917 came intooperation, in the absence of an instrument regulating the devolution oftrusteeship or any special customary rule, the trusteeship devolved onthe heirs of the founder of the trusts. In Ramanathan v. Kurukkal (4),Grenier, J. remarked:
"It is a well known fact that Hindu temples in Ceylon are under thecontrol and management of persons in whom the fabric is vested:
by right of private ownership ;
by grant or assignment by the owners of the land on which thetemple is built;
by appointment by the congregation;
by deed of trust, a term well understood among Hindus.
I have not exhausted all the means by which managers or trusteesare appointed, but I think there can be no doubt that the plaintiff wasthe trustee of the temple in question, and had the right to appointKurukkals or priests without consulting the congregation".
Again in Kumaraswamy Kurukkal v. Karthigesa Kurukkal (5) Bertram,C.J. observed:
"What then is the religious law with regard to the management o1foundations of this kind? It is perfectly clear that subject to anarrangement made by the founder, the right of management of thefoundation vests in the founder himself and his heirs, but thefounder himself is entitled to make express provisions for his futuremanagement."
It would be appropriate at this stage to consider how NarayanapillaiArumugam became a trustee of the temple. The evidence led in thiscase does not lend support to the position of the plaintiffs thatNarayanapillai Arumugam was the founder of the trust. According toD14, a certified copy of the temple register prepared on15.10.1883, the temple was built by "Sedhampani Ramar NaranaiGromogam" in the year 1775. This is obviously a reference toSithtampani Ramar through whom the 1 st defendant claims title to thetemple. Another document which is not without significance, is acertified copy of the record in case No. 8402 of the District Court ofJaffna (P8/D3). On 22.1.1912 Narayanapillai Arumugam (signatoryto P2 and P1) filed action as trustee and manager of the templeagainst three persons regarding a parcel of land which was alleged tcbe a part of the temporalities of the temple. In para 3 of that plaintNarayanapillai Arumugam claimed that his ancestors who were theowners of the portion of the land in dispute "verbally donated the laneto the temple 75 years ago". By decree entered in that caseNarayanapillai Arumugam was declared trustee and manager and wasquieted in possession of the portion of land in dispute. These twodocuments, coupled with the evidence given on behalf of thedefendants at the trial, lead us to the conclusion that NarayanapillaiArumugam became a trustee of the temple on hereditary rights,although deeds P2 and P1 are silent on this matter.
It cannot be said that Narayanapillai Arumugam was inhabited by thelaw at that time from appointing Kumaraswamy Kurukkal as a trusteeby P 2 of 1914 and it would appear that the legal title of the templeremained with Narayanapillai Arumugam despite the fact thatKumaraswamy Kurukkal was appointed trustee. I find nothing in the
language of P 2 to suggest that Narayanapillai Arumugam parted withhis title to the temple. This view is further supported by the conduct ofNarayanapillai Arumugam and Kumaraswamy Kurukkal in jointlyexecuting P1 of 1916. I am of the view that the law then in existencedid not preclude Kumaraswamy Kurukkal from renouncing his rights oftrusteeship, agreeing to appoint Narayanapillai's son ArumugamSaravanamuttu as a trustee, and relegating himself to the position of apriest "reserving the right of (performing) poojahs subject to theauthority and powers of Arumugam Saravanamuttu".
What was the conduct of Kumaraswamy Kurukkal after theexecution of P1 of 191 6? On 29.01.1918, two persons filed actionagainst Arumugam Saravanamuttu and Kumaraswamy Kurukkal, bycase No. 12582 of the District Court of Jaffna, claiming possession ofthe temporalities of the temple, the plaint of which case was producedmarked D4A. Kumaraswamy Kurukkal did not file answer, whileArumugam Saravanamuttu did, in which answer he claimed thetrusteeship of the temple on a hereditary basis, tracing his title fromthe founder Sithtamparam Ramar. Decree was entered of consent inthat case, Arumugam Saravanamuttu being declared the manager ofthe temple. (D5 and D6).
The present dispute between the parties arose in connection withsome disagreement on the question of certain socially disableopersons seeking entry to the temple premises as worshippers. One R.Kumaravelu, apparently a de facto trustee of the temple, wasprosecuted in case No. 1905 of the Magistrate's Court of Mallakamunder the Prevention of Social Disabilities Act No. 21 of 1957. In theyear 1968, Kumaraswamy Kurukkal giving evidence in that case (P4),claimed to be no more than the high priest of the temple.
According to the view I have taken, that Kumaraswamy Kurukkalrenounced his trusteeship by P1, which he lawfully might have done, hehad no authority to execute P3 of 1969. The question whether P3conforms to the provisions of the Trusts Ordinance No. 9 of 1917,therefore, does not arise for our consideration.
However, the plaintiffs have a second string to their bow, for, theycontend that if PI is valid, in terms of that deed, the d olution oftrusteeship has failed and Kumaraswamy Kurukkal had authority toappoint trustees in such an eventuality. It was common ground duringthe course of the arguments before us, that the translation of P1appearing at page 293 of the brief, is correct. According to PI,Kumaraswamy Kurukkal and Arumugam Kumaraswamy expressed:"We do hereby declare that the said Arumugam Saravanamuttuwill and shall have full right and title during his life time to appointanother trustee, if so required to function jointly with him orseverally. In the event of the said Saravanamuttu not havingappointed a trustee during his lifetime, such right of being a trusteewould be vested on his male descendants and their heirs. In theevent of the said Saravanamuttu not having male descendants,such right of being a trustee shall be vested on his female heirs."
It is in evidence that Saravanamuttu died leaving as his heir, his sonVinayagampillai, who died unmarried and issueless. The firstdefendant's father Kanapathipillai Sinniah, being a son ofSinnathamgam the sister of Vinayagampillai and therefore being anheir of the descendant of Arumugam Saravanamuttu, was a personwho was entitled to succeed as trustee in terms of P1. Therefore, itwould appear that the succession in terms of P1 had not failed and theplaintiffs' case cannot succeed even on this alternative basis.
The plaintiffs also sought a declaration that they be declaredhereditary priests of the temple, but I find no cogent evidence led atthe trial to support such a claim.
The next question to be decided is the validity of the claim of the 1 stdefendant that he is entitled to succeed to the trusteeship by virtue ofdeed No.6106 of 1.9.1969 (D17) executed by his father SinniahKanapathipillai, who was alive at the trial, but was not called to giveevidence. This was the only basis on which the 1 st defendant claimedthe trusteeship at the trial, for he could not have claimed thetrusteeship on a hereditary basis as his father was alive. The validity ofD17 should be tested in terms of Trusts Ordinance No. 9 of 1917. IfKanapathipillai Sinniah was the lawful trustee of the temple, he couldnot have renounced his trusteeship in terms of section 48 of theTrusts Ordinance.
Section 48 of the Trusts Ordinance reads:
"A trustee who has accepted the trust cannot afterwardsrenounce it-except-
with the permission of court; or
if the beneficiary is competent to contract, with his consent; or
by virtue of a special power in the instrument of trust."
In terms of section 72, the office of a trustee is vacated by hisdeath, or by his discharge from office. According to section 73,among other modes of obtaining a discharge, a trustee may bedischarged by appointment under the Ordinance of a new trustee inhis place. It is contended therefore that Kanapathipillai could, byexecuting D17, achieve this object, having recourse to section 75(1).If I may condense section 75(1) as far as it applies to the facts, itwould read:
"Whenever any person appointed a trusteedesires to be
discharged from the trusta new trustee may be appointed in
his place bythe surviving or continuing trustees or trustee for
the time being, or legal representative of the last surviving andcontinuing trustee ….".
I do not think the language of this section enables Kanapathipillai toplay the dual roles of the trustee desiring to be discharged and theperson making the new appointment. I am of the view thatKanapathipillai could have got himself discharged by getting a newtrustee appointed in his place, only through the intervention of court,by making an appropriate application within the scheme of the TrustsOrdinance. In the result, I fail to see how the case of the firstdefendant too could succeed.
For the above reasons I would allow the appeal, set aside thejudgment of the learned District Judge and dismiss the plaintiffs'action. The defendant-appellants will be entitled to costs below, andcosts of this appeal fixed at Rs. 525.
Before parting with this judgment, while thanking learned counselfor the appellants and respondents for their invaluable assistancerendered to court, I think, I shall be remiss in my duty, if I fail to placeon record, our indebtedness to Mr. G. P. S. H. de Silva, Director ofNational Archives, not only for forwarding us a photo copy of theHansard of 15.11.1916 at my request, but also for the alacrity withwhich it was done.
G. P. S. DE SILVA, j. – I agree.Appeal allowed.